JUDGMENT

Piggott, Lindsay and Sulaiman, JJ. - In this case Sardara, Bansi and Pokha, described as pasis by caste, residents of the same village, mauza Meoli, in the Rampur State, were put on their trial on a charge framed u/s 396 of the Indian Penal Code in respect of a dacoity committed on the 27th of June, 1922, at a village called Majhaula, in the Bahjoi police circle of the Moradabad district. The learned Sessions Judge has convicted all three accused and the record is before us for confirmation of the sentence of death passed by the sessions court. The accused have submitted petitions of appeal and the case has been argued by counsel on their behalf. The commission of a serious dacoity on the date and at the place specified in the charge is proved by abundant evidence and is not contested. The villagers seem to have expected succour from a fort belonging to a local Eaja and as the dacoits who were somewhere about thirty in number, were leaving the house which they had plundered, they found it necessary to fire on the assembled villagers in order to clear a passage for themselves. The evidence is that either two, or three, shots were fired, that two villagers were killed on the spot and others wounded. It will be convenient to consider at once the circumstances under which the three appellants came to be implicated. More than a month later, that is to say, on the 30th of July, 1922, the police in the Etah district arrested, under circumstances of grave suspicion. certain persons who were endeavouring to travel by train from the railway station of Kasganj or other railway stations on the same line in that district. Amongst the persons so arrested were these three accused, Sardara, Bansi and Pokha. The learned Sessions Judge does not say that they were arrested together; but he says that they were arrested under circumstances warranting the inference that they had gone to the Etah district on one and the same business. Sardara was produced before a Magistrate on the 1st of August, 1922, the next day but one after his arrest. To that Magistrate he made a detailed confession, admitting his complicity in dacoities which had just been committed in the Etah district and also referring to other dacoities committed by the same gang in other districts. Amongst the dacoities referred to in this confession is this offence committed at Majhaula for which the three accused have now been tried and convicted. In consequence of this statement, the three accused were placed, along with a number of other under-trial prisoners, in the Etah Jail on the 17th of August, 1922, when witnesses from Majhaula were brought to see if they could identify any of them. Evidence as to this identification proceeding has been given by the Magistrate under whose supervision it was conducted. The result, so far as we are concerned, was that one witness, by name Angan Lal, picked out the accused Sardara and Bansi from amongst the entire number of persons paraded before him for identification. He has been consistent throughout in his statement in respect of these two men. He says they were amongst the dacoits who committed the offence at Majhaula and that Sardara had a gun. It was a dark night, but the dacoits had lit torches inside the house and, when they were leaving the house, the witness deposes that they passed quite close to him. The witness made no mistake in his identification; that is to say, he did not profess to recognize any of the persons placed before him except Sardara and Bansi. One other witness, by name Biba Ram, picked out the accused Bansi and Pokha as persons whom he recognized' as having been amongst the dacoits at Majhaula; but he also picked out and made the same assertion concerning an under-trial prisoner who admittedly had nothing whatever to do with the dacoity at Majhaula. His evidence is, therefore, discounted to this extent, that he has shown himself capable of making a wrong identification. We need not refer for the moment to the